N.Rajasekaran v. Union Of India
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.12.2020
CORAM:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH W.P.No.18089 of 2020 and WMP No.22475 of 2020 1 N.Rajasekaran 2 Thulasikala Rajasekaran ..Petitioners Vs
1. Union of India Rep by its Secretary Ministry of Road Transports and Highways, New Delhi- 110 001.
E-Mail: secy-road@nic.in
2. The Chairman National Highways Authority of India G5 and 6 sector- 10, Dwarka, New Delhi- 110 075.
E-Mail: chairman@nhai.org
3. The Project Director Project Implementation Unit National Highways Authority of India Door No 212-3/D3-1 Sri Nagar Colony, Narosodhipatty, Salem- 636 004.
4. The Competent Authority cum Spl DRO (LA) National Highways No 7 47 and 46 Ex service Man Welfare Building 1st Floor, Salem-Krishnagiri District Krishnagiri 635 001.
..Respondents Prayer:
Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus, directing the Respondents to disburse the Statutory entitlements namely 30% Solatium and 12 % Additional Interest amount along with 15 percentage interest till the date of payment of
Rs.495 per square feet being the market value as of now accepted by the respondents in pursuance of Award No NH No.47 AA.VA.NO 554/B2 dated 8.11.2020 passed by the Arbitral Tribunal cum District collector Salem in the Light of the Judgement of the Honble Supreme court of India in the matter of Union of India and Another vs Tarsem Singh and Others in Civil Appeal No.7064/2019 for the Petitioners property measuring an extent of 137 Sq.mts, 34 Sq.mts, 192 Sq.mts, 148 Sq.mts of land with building in S.No.47/1B1C, 47/1C, 47/1D2C and 47/1I3G1 of Annadhanapatty Revenue Village, Salem Corporation, Taluk and District acquired by the 4th respondent office in Award No.Roc.1299/2008(A2) dated 27.06.2008.
For Petitioner : Mr.ARL.Sundaresan Senior Counsel for Mr.P.Sivakumar For R 1 : Mr.G.Karthikeyan Addl. Solicitor General For RR 2 and 3 : Mr.Su.Srinivasan Standing Counsel
ORDER
This writ petition has been filed for the issue of a Writ of Mandamus directing the respondents to disburse the statutory entitlements namely 30% solatium and 12% additional interest to the petitioners in line with the judgement of the Hon'ble Supreme Court in Tarsim Singh's case reported in (2019) 9 SCC 304.
2. The case of the petitioners is that the lands were acquired by the National Highways and subsequently the compensation was fixed and the inadequacy of compensation was taken up by way of arbitration proceedings before the District Collector. While the compensation was fixed, the petitioners were not paid the solatium at the rate of 30% as per Section 23
(2) of the Land Acquisition Act, 1894 (hereinafter called 'the Act') and the additional amount at the rate of 12 % was not paid as per Section 23 (1)(A) of the Act. This was due to the fact that Section 3-J of the National Highways Act, did not provide for the payment of compensation under these heads.
3. Ultimately the Hon'ble Supreme Court in Union of India Vs. Tarsem Singh reported in (2019) 9 SCC 304, declared Section 3-J of the National highways Act, as unconstitutional and violative of Article 14 of the Constitution of India. In view
of the same, the petitioners made a representation to the respondents requesting for the payment of solatium and additional amount with interest. Since the same was not considered, the present writ petition has been filed before this Court.
4.Heard Mr. ARL Sundaresan, learned Senior Counsel appearing for the petitioners and Mr.G.Karthikeyan, learned Addl. Solicitor General for R 1 and Mr.Su.Srinivasan, learned Standing Counsel appearing on behalf of respondents 2 and 3.
5. The issue involved in the present case was considered by this Court in W.P.No. 17302 of 2020. The relevant potions in the order are extracted:
6. It is further seen from records that the matter was ultimately decided by the Honourable Supreme Court in the case of Union of India and another vs. Tarsem Singh and others reported in 2019(9)SCC page 304. The Honourable Supreme Court in this judgment held that 3-J of the National Highways Act is unconstitutional and it is violative of Article 14 of the Constitution of India. The relevant finding of the Honourable Supreme Court at paragraph 52 of the judgment is extracted hereunder;
52.There is no doubt that the learned Solicitor General, in the aforesaid two orders, has conceded the issue raised in these cases.This assumes importance in view of the plea of Shri Divan that the impugned judgments should be set aside on the ground that when the arbitral awards did not provide for solatium or interest, no Section 34 petition having been filed by the landowners on this score, the Division Bench judgments that are impugned before us ought not to have allowed solatium and/or interest. Ordinarily, we would have acceded to this plea, but given the fact that the Government itself is of the view that solatium and interest should be granted even in cases that arise between 1997 and 2015, in the interest of justice we decline to interfere with such orders, given our discretionary jurisdiction under Article 136of the Constitution of India. We therefore declare that the provisions of the Land Acquisition Act relating to solatium and interest contained in Section 23(1A) and (2)
and interest payable in terms of section 28 proviso will apply to acquisitions made under the National Highways Act. Consequently, the provision of Section 3J is, to this extent, violative of Article 14 of the Constitution of India and, therefore, declared to be unconstitutional. Accordingly, Appeal arising out of SLP (C) No. 9599/2019 is dismissed.
7. Pursuant to the above judgment, the petitioner has made a representation to the respondents seeking for the 30% solatium and also 12 % of additional amount. Since the same was not considered, the present Writ Petition has been filed before this Court.
8. The learned Addl. Govt. Pleader appearing on behalf of the 1st respondent and the learned Standing Counsel appearing on behalf of the 2nd respondent submitted that the judgment of the Honourable Supreme Court cannot reopen the awards that have already been passed and the petitioner cannot be permitted to claim for 30% solatium and 12% additional amount by taking advantage of the judgment of the Honourable Supreme Court which was passed much later in time.
9. In the considered view of this Court, the above submissions are not acceptable to this Court on two grounds. The first ground is that the petitioner specifically made a claim for 30% solatium and 12% of additional amount based on the judgment of the High Court and the same was rejected by the District Collector only on the ground that an appeal is pending before the Honourable Supreme Court. Now the Honourable Supreme Court has declared Section 3-J of the National Highways Act as unconstitutional. Therefore the claim made by the petitioner is revived by virtue of this judgment of the Honourable Supreme Court. The second ground is that where a provision has been declared to be unconstitutional by the High Court or by the Supreme Court, the same will have a retrospective effect and it will be deemed that such a provision was not available in the relevant enactment and it will be treated as non-est in the eye of law. That apart,
judicial decisions will have retrospective operation unless and otherwise it is specified in the judgment itself that it will have only a prospective effect. Useful reference can be made to the judgment of the Honourable Supreme Court in the case of General Manager, Uttaranchal Jal Sansthan Vs. Laxmi Devi and others reported in (2009) 7 SCC 205 and also in the case of K.Madhava Reddy and others Vs. The State of Andhra Pradesh and others reported in 2014 6 SCC 537.
6. The above order will squarely apply to the facts of the present case also. In the considered view of this Court, the request made by the petitioners for payment of the solatium and additional amount with interest cannot be termed as re-opening a settled claim. It is not as if this claim was made by the petitioners and rejected on the merits of the case. The compensation was not paid under these heads since Section 3-J was in force and therefore the compensation could not have been granted under these heads. Therefore, the petitioners are entitled to claim compensation under these heads.
7. The learned Standing Counsel appearing on behalf of National High ways brought to the notice of this Court the earlier orders passed by this Court in W.P.No.9445 of 2020, dt.08.09.2020 and submitted that similar such request made in that writ petition was rejected by this Court. In the considered view of this Court, the facts of the case involved in the said order is completely different from the facts of the present case. That apart, even assuming that the earlier order gives an impression as if the solatium and additional amount cannot be claimed after the judgment of the Hon'ble Supreme Court in Tarsem Singh such a view may not be correct and a Court which feels that an earlier view was wrong, need not bind itself with that view. As the Court gets wiser, it must correct its view wherever it finds that the earlier view was not in accordance with law.
8. In view of the above discussion, the representation made by the petitioners will have to be necessarily considered. The petitioners are directed to make a fresh representation before the District Collector, Salem along with all the relevant documents and a copy of this order. The District Collector on receipt on the representation shall issue notice to the petitioners as well as the National Highways Department. An enquiry shall be conducted and orders shall be passed within a
period of four months from the date of the receipt of the representation from the petitioners.
9. This writ petition is disposed of accordingly. No costs. Consequently, the connected miscellaneous petition is closed. Sd/- Assistant Registrar(CS VII) //True Copy// Sub Assistant Registrar KP To
1. The Secretary Union of India Ministry of Road Transports and Highways, New Delhi- 110 001.
E-Mail: secy-road@nic.in
2. The Chairman National Highways Authority of India G5 and 6 sector- 10, Dwarka, New Delhi- 110 075.
E-Mail: chairman@nhai.org
3. The Project Director Project Implementation Unit National Highways Authority of India Door No 212-3/D3-1 Sri Nagar Colony, Narosodhipatty, Salem- 636 004.
4. The Competent Authority cum Spl DRO (LA) National Highways No 7 47 and 46 Ex service Man Welfare Building 1st Floor, Salem-Krishnagiri District Krishnagiri 635 001.
5. The District Collector, Salem.
+2cc to Mr.P.Sivakumar, Advocate, SR40473 W.P.No.18089 of 2020 CO(MJB) BDL/31/12/2020